Hudson St. Owner Equities, LLC v. Escoffier

Full title: HUDSON STREET OWNER EQUITIES, LLC, Petitioner–Landlord v. Dana ESCOFFIER…

Court: Supreme Court, Appellate Term, New York, First Department.

Date published: Jun 26, 2012

36 Misc. 3d 127 (N.Y. App. Div. 2012)

2012 N.Y. Slip Op. 51167

957 N.Y.S.2d 264

Opinion

No. 570093/10.

2012-06-26

HUDSON STREET OWNER EQUITIES, LLC, Petitioner–Landlord v. Dana ESCOFFIER, Respondent–Tenant–Appellant.

PER CURIAM.

Tenant, as limited by his briefs, appeals from that portion of an order of the Civil Court of the City of New York, New York County (Arlene H. Hahn, J.), dated December 10, 2010, which held him in civil contempt in a nonpayment summary proceeding, and an order (same court and Judge), dated April 11, 2011, which denied his motion for leave to reargue the aforesaid order.
Present: LOWE, III, P.J., SHULMAN, TORRES, JJ.

PER CURIAM.

Order (Arlene H. Hahn, J.), dated December 10, 2010, modified to include an express finding that tenant's actions were calculated to or actually did impair, impede, or prejudice landlord's rights and remedies; as modified, order affirmed, without costs. Appeal from order (same court and Judge), dated April 11, 2011, dismissed, without costs, as nonappealable.

We sustain the finding of civil contempt, since the record establishes with reasonable certainty that tenant “refus[ed] or willful[ly] neglect[ed]” to obey the post-judgment subpoena duces tecum, thereby prejudicing landlord's rights (CPLR 5251; see McCain v. Dinkins, 84 N.Y.2d 216, 226 [1994];Matter of McCormick v. Axelrod, 59 N.Y.2d 574, 583 [1983] ). Service of the order to show cause upon tenant's attorney was sufficient ( seeJudiciary Law § 761; Matter of Grand Jury Subpoena [Morano's of Fifth Ave., Inc.], 144 A.D.2d 252, 256 [1988],lv denied in part, dismissed in part,73 N.Y.2d 1009 [1989];Lu v. Betancourt, 116 A.D.2d 492 [1986] ), and, in any event, tenant waived any objection to service when he entered into the so-ordered stipulation to produce the requested documents ( see Coronet Capital Co. v. Spodeck, 202 A.D.2d 20, 29 [1994];cf. Lu v. Betancourt, 116 A.D.2d at 494).

Although the order holding tenant in contempt is technically defective because it does not recite that tenant's actions were calculated to or actually did defeat, impair, impede, or prejudice landlord's rights or remedies, we modify to correct this technical flaw ( see Hero Boy, Inc. v. Dell'Orto, 306 A.D.2d 226, 227 [2003].

Contrary to tenant's assertion, the record does not reveal any evidence of bias on the part of the motion court.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.